The Federalist Solution?

It’s never not appropriate to post a scene from the only screen adaptation of a Clancy book that didn’t veer wildly from the novel*, but it seems especially apropos in this current environment.

* Except for the not entirely insignificant difference that in the book the US knows Ramius is defecting, whereas in the movie it’s a good guess on Jack Ryan’s part.

So, things are pretty nuts out there, huh? If you’ve had conversations with just about any other human being who is even remotely tuned in politically, it seems the country is bursting at the seams. Some think we’re on the precipice of a civil war, while others (or at least one other in my comments section) have compared it to the environment leading up to the American Revolution.

Here’s the thing: I don’t think these dire assessments are wide of the mark. Our political discord has been getting testier by the year, and no, it did not begin with the ascension of Donald Trump, nor do I think he necessarily hastened developments (though he certainly didn’t help). Violent fantasies about killing George W. Bush made their way to print and film, and life did not get quieter during Obama’s presidency. A quick perusal of twitter comment threads are a good reflection of the anger boiling over in every direction.

The Kavanaugh confirmation hearing has brought together several different threads, and that is why I believe it has been especially rancorous. Kavanaugh has been nominated to replace Anthony Kennedy, who has been a swing vote on the Supreme Court. Kennedy’s votes on cultural/social issues (which tended towards a leftist/broad interpretation of the constitutional text) and economic/regulatory issues (tending more towards a conservative/textualist approach) are themselves flashpoints in the political and cultural cold war we’ve been living with. And of course Kennedy’s appointment was the result of perhaps the most contentious Supreme Court confirmation battle before this one, when Robert Bork’s nomination was, well, borked by Senate Democrats. Ted Kennedy famously bellowed “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”

So you can see we’ve had a lot of anger billowing underneath the surface for quite awhile now. Kennedy’s nightmare vision of Bork’s America – to be contrasted with Ted Kennedy’s America, where helpless women are permitted to drown in automobiles just feet from shore – helped sink Bork. After Reagan’s next pick, Douglas Ginsburg, was sunk because of revelations of pot usage (oh for more innocent times), Kennedy became the compromise pick.

And so here we are. The proper role of the Supreme Court, the proper method of interpreting the Constitution, the appropriate scope of the federal government, and dealing with the question of sexual assault and abuse and the levels to which alleged victims should be believed unconditionally: these are just some of the small, minor issues this process has brought to the fore. I can’t imagine why we’re all at each other’s throats over this.

The question all this poses for us is whether we can actually function as something like a united nation in light of all this, or have our politics diverged to such an extent that there is no living with the other side?

Charles Murray was posed a question like this on an episode of Jonah Goldberg’s Remnant podcast, and he hinted at an answer: federalism. Actually, Murray dug a little deeper. He noted that there were liberal (and majority white) urban enclaves such as Portland, Burlington, and Austin who have essentially adopted the “we just want to be left alone” mantra typically ascribed to southern and more conservative outposts. “Keep Austin Weird” is, after all, a popular bumper stickers around that town. The idea is that there is a unique local culture, and outsiders should not come and mess things up.

A good compromise to my ears is that we’ll keep Austin weird as long as we keep the rest of the state an outpost for individual liberty. Refugees from California ought not flee from their state because of the onerous regulatory environment only to come to Texas and vote for the same types of politicians who made them relocate in the first place. In other words, states and localities should be given wide latitude to govern as they see fit without a larger group forcing change upon them.

In a sense this not far from the Catholic doctrine of subsidiarity,  which encourages decision making at the lowest (or smallest) level possible. In a nation of 320+ million souls, subsidiarity and its political cousin, federalism, are likely the best answer.

Moreover, this approach would solve the dilemma of one of the other concurrent heated debates: the role of the courts. We’re only having this moment right now because of the awesome power of the courts, and in particular the Supreme Court. The nationalization of every issue and the over-sized role of the Court in arbitrating constitutional disputes are self reinforcing problems. Simply because the other two branches have allowed it to happen, the Supreme Court has become a super-legislature, handing down binding decisions that impact every facet of American life. This is, shall we say, not optimal, and certainly not what the Framers envisioned.

And yet, it feels a bit like saying the solution to our fractured politics is to be a constitutional, federalist America. To save America, America must become America again. While this restoration of the American ideal might sound attractive to me and many of those reading this, it doesn’t exactly satisfy everyone. Furthermore, unless we’re willing to be proponents of the “constitution in exile” theory, it begs the question of how this awesome constitutional design left us where we are today. In other words, maybe bad actors didn’t subvert the constitutional design, but rather the constitution itself was fraught with unresolvable conflicts. To put it in ways that might hurt delicate ears: maybe the constitutional design itself is flawed. Maybe the anti-federalists had it right from the beginning.

When I started this blog post, there was no question mark at the beginning of the title. There is now because as I think through these problems, I’m less certain there is a solution.Then again, as Darwin Catholic put it, catharsis isn’t coming, so maybe we shouldn’t be aiming for it.

I put these questions out there not as a rhetorical ploy. This isn’t a case where I’m throwing out a question about the anti-Federalists only to reply strongly in the negative (or affirmative). I’m genuinely puzzling through these questions even as I type.

It’s easy to sit here and say the Supreme Court should not be the ultimate arbiter of constitutional questions. It is much more difficult to propose ways to curtail some of its authority in ways which would preserve the delicate checks and balances of our constitutional system in a way satisfactory to all – or heck, most. Pundits are supposed to confidently posit world-stopping solutions to all our problems. At this moment in time, I am not afraid to say that I have no easy solution to resolving the growing tensions in American society.